Communication Currents

Determining Free Speech in Court: When Does Interpretation Play a Role?

October 1, 2016

Freedom of Expression

In the fall of 2010, a pair of female middle school students were found to be in violation of their school’s dress code policy when they began wearing the Keep a Breast Foundation’s “I ♥ Boobies” wristbands to school. While the students claimed they wore the wristbands to educate, show support, and open a dialogue about women’s bodies in a non-sexual context, school administrators deemed the wristbands sexually provocative and inappropriate. School officials banned the students from wearing them at school and eventually suspended the students, barring them from attending a school dance. The young women brought the case to court, seeking an injunction against the ban as well as their exclusion from the school dance.

In his recent essay, Brian Amsden takes a closer look at this case and examines the ways in which jurists and rhetoricians can collaborate on cases like this one, which turn on questions of interpretation. Amsden writes,

After all, if jurists’ expertise arises from specialized training in the interpretation of legal texts rather than from any expertise in interpretation per se, then whole domains of public policy and administration require the intervention of those with expertise in the interpretation of the vernacular.

Courts, he explains, often “make decisions based on pretenses of objectivity, insularity, and empty formalism.” But Amsden argues that legal practitioners should also pay attention to elements such as public culture, literary form, and ideology when making decisions.

To show solidarity with friends and relatives who had experienced breast cancer, the plaintiffs, B.H. and K.M., wore I ♥ Boobies bracelets to school. They later testified that they wore the bracelets to educate fellow students and raise breast cancer awareness. After some deliberation, the school vice principal announced a ban on wristbands bearing the word “boobie,” a ban that was later adopted by the entire school district. At that time, notes Amsden, no justification was offered for the policy.

On October 28, 2010, the day the students’ school recognized as Breast Cancer Awareness Day, the young women wore their “I ♥ Boobies” bracelets to school and were sent to an assistant principal’s office. Their refusal to take off their bracelets resulted in one-and-a-half days of in-school suspension, and they were prohibited from attending the middle school’s Winter Ball. With their parents’ help, the students sought an injunction against the bracelet ban and their exclusion from the school dance, and the district court issued a ruling in their favor. The ruling later was sustained by the Third Circuit Court.

To make a decision about this case, the court examined two past Supreme Court cases, Tinker v. Des Moines (1969) and Bethel v. Fraser (1986), which had established and limited the free speech rights of public school students. These cases did not provide a clear litmus test for making a decision in B.H. and K.M. v. Easton Area High School District, so the court decided to introduce a new three-part test. First, the justices affirmed that speech that is “plainly lewd… may be categorically restricted regardless of whether it comments on political or social issues.” Second, they reasoned that speech that “a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues.” Finally, they argued, “speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted.”

Conclusion

Amsden argues that the majority decision’s flaw is that “it does not encourage [school administrators] to produce good rhetorical analysis.” Just as jurists have a systematic process for answering questions of fact and law, they should also have a systematic process for adjudicating questions of meaning—“even when those questions arise within the domain of the vernacular.” When using the three-part test above, says Amsden, students’ First Amendment rights will be subject to arbitrary restrictions.

Amsden proposes that rhetoricians assist school administrators by providing a set of concepts, terms, and methods that elucidate the interpretive process. “These will be different from, and in some cases inconsistent with, the concepts, terms, and methods used to interpret legal texts,” he writes.

The Supreme Court did not review B.H. and K.M. v. Easton Area High School District, but the majority opinion of the Third Circuit “almost guarantees that the high court will need to revisit lewd student speech sooner or later,” says Amsden. Rhetorical scholars have a lot to contribute to these conversations, the author argues. “In our engagement with the law, we must demonstrate a measure of rhetorical sensitivity far greater than that which the Third Circuit demonstrated in the case of B.H.”